The Rule 45 subpoena: Instituting an ESI action plan

In this article, we examine what you should do as general counsel when you are served with a binding subpoena demanding preservation and production. Particularly, where the subpoena seeks costly and cumbersome electronically stored information (ESI), this article examines what you can do to efficiently minimize your potential exposure and burden while complying with the obligations imposed by Rule 45 of the Federal Rules of Civil Procedure.

Service of Rule 45 subpoena immediately triggers a nonparty’s obligations to preserve all material within the scope of the subpoena, even if the nonparty intends to object and/or work with the requesting party to narrow the breadth of the request. The first step is to closely evaluate the scope of the subpoena. This includes:

Determining the time period from which material is requested and the location of that material (i.e. whether the information is stored locally or on backup tapes);

Identifying the parties who likely possess the requested information;

Considering whether the request implicates any confidentiality concerns related to either internal employees or unrelated third parties; and

Conducting an initial analysis of the time, resources and related expenses necessary to comply with the subpoena as served.

Once you have evaluated the parameters of the information requested, as general counsel you should promptly circulate an internal litigation hold notice as broad as that demanded in the subpoena to the relevant parties outlining the categories of material requiring preservation, even if you believe the request will likely be deemed overbroad. You should also coordinate with your IT department to ensure any automated electronic document deletion is suspended to avoid the potential for unintended destruction, deletion or other hurdles to future access (e.g. automatic deletion of emails).

Having taken steps to preserve the data, you should then consult with the requesting party to see if you can reach agreement on limiting the subpoena’s scope. For example, by working with the requesting party to narrow the time period of the request, you may be able to avoid the cost of searching backup tapes. Similarly, you may be able to convince the requesting party to narrow the subject matter of the request or the custodians whose records must be searched. General counsel should also seek cost-shifting arrangements with the requesting party depending on the anticipated resources required to comply with the subpoena’s demands, and they should discuss the form in which they should produce ESI.

If negotiations with the requesting party do not result in sufficient narrowing of the scope of the request, it is important to be aware of Rule 45’s 14-day window in which a nonparty must formally serve objections to the subpoena. By objecting, the nonparty shifts the burden to the requesting party to seek court intervention to resolve any objections. The grounds for a nonparty’s objections should be specific. For example, where the subpoena seeks “all” material related to a topic that involves a significant number of employees, an objection to the undue burden and costs associated with preserving and searching the ESI of each employee should be paired with an explanation of the number of employees implicated by the request, a general estimate of the employee resources associated with compliance with the subpoena and, if applicable, the extent to which the requested ESI is irrelevant to the broader lawsuit. It is also important to articulate the costs associated with compliance, as the court has discretion to shift the costs in whole or in part to the requesting party, and because the nonparty is not obligated to produce ESI from sources that are not reasonably accessible because of burden or cost.

Courts recognize that the costs and burdens associated with the preservation and production of ESI should not be the same for nonparties as for parties and do not hesitate to deny motions to compel or quash subpoenas demanding overbroad and costly discovery unnecessary to resolution of the litigation or otherwise running afoul of Rule 26’s discovery parameters. Nonparties have also successfully moved courts to require the requesting party to work with the nonparty to create a sampling and search protocol to limit the scope of a subpoena.

Vague and general requests should not be taken at face value. General counsel should scrutinize the scope of the subpoena and immediately institute a plan that complies with a nonparty’s preservation obligations, while, if possible, working with the requesting party to address any concerns with compliance and associated costs of preservation and production.